9.  The applicant is a Rwandan citizen of Hutu ethnicity, who was born in 1956. He used to be the head of the Rwandan Civil Aviation Authority. He has claimed that he left Rwanda on 14 April 1994. In 2001 he took up residence in Denmark, where he was granted refugee status. Resident in Denmark are also his wife, his former wife and his three children.
10.  In January 2006, a Danish public prosecutor opened a preliminary investigation in regard to a suspicion that the applicant had committed genocide and crimes against humanity in Rwanda in 1994. In particular, the preliminary investigation concerned one of the crimes allegedly committed by the applicant, a massacre of Tutsis on 7 April 1994. The Danish police made several visits to Rwanda and other countries and questioned numerous witnesses but finally, in September 2007, the preliminary investigation was discontinued because the prosecutor found that the evidence against the applicant was not sufficient for a conviction.
11.  Subsequently, the Danish Ministry of Foreign Affairs received a request from the Rwandan authorities to have the applicant extradited to Rwanda to stand trial on charges including genocide and crimes against humanity. The Danish public prosecutor made a preliminary examination of the matter and presented his comments to the Danish Ministry of Justice. On this basis, the Ministry of Justice asked the Rwandan authorities to provide it with further information about the alleged crimes of which the applicant was suspected and, in particular, supporting material (such as forensic evidence and depositions). The reason for this was that, according to Section 3 of the Danish Extradition Act, a request for extradition may be denied if the evidence in support of the request is deemed insufficient. The Rwandan authorities did not respond and no decision has been taken by the Danish authorities on the request for extradition.
12.  On 16 July 2008, after the Swedish police had been informed by the Rwandan Embassy in Stockholm that the applicant had visited them and that he was sought by the Rwandan authorities, the applicant was arrested in Stockholm in compliance with an international alert and warrant of arrest. The arrest order was confirmed by the District Court (tingsrätten) of Solna on 18 July and, on 21 July, the Ministry of Justice decided, pursuant to Section 23 of the Criminal Offences Extradition Act (Lag om utlämning för brott, 1957:668; “the 1957 Act”), to invite the Rwandan authorities to present a request for extradition by 22 August.
13.  On 4 August 2008 the National Public Prosecution Authority in Rwanda made a formal request for the extradition of the applicant to Rwanda for purposes of prosecution. It invoked an international arrest warrant issued by the Rwandan Prosecutor-General on 17 July 2008 as well as an indictment according to which the applicant was charged with the following crimes, allegedly committed between 6 April and 4 July 1994: (1)  genocide, (2) complicity in genocide, (3) conspiracy to commit genocide, (4) murder, (5) extermination, and (6) formation, membership, leadership and participation in an association of a criminal gang, whose purpose and existence were to do harm to people or their property. Allegedly, during the relevant period, the applicant had acted as a leader for the Interahamwe militia. He had trained and encouraged other government-connected civilian militias to kill Tutsis, to cause them serious bodily harm and to plunder their homes. He had also transported and distributed weapons to members of the Interahamwe and other militias. He had met with local officials to plan and organise the distribution of weapons and had incited civilians to kill and rape Tutsis. He had prepared, trained, equipped and organised militias in his home town. Furthermore, together with about 50 members of the Interahamwe, he had been actively involved in the murder of 28 Tutsis on 7 April 1994.
14.  In the arrest warrant of 17 July 2008 and the extradition request of 4  August 2008, the Rwandan authorities referred to recent legislative changes concerning the criminal procedure and possible punishment in regard to transferred genocide suspects (which are further described below). They affirmed their “satisfactory assurances on human rights issues”, claiming that, should the applicant be transferred to Rwanda, he would receive a fair trial in accordance with national legislation and in conformity with fair-trial guarantees contained in international instruments ratified by Rwanda. He would be tried, at first instance, by the High Court and, upon appeal, the Supreme Court. In regard to detention, the extradition request contained the following information:
“If arrested, detained or imprisoned following [his] arrest and subsequent to the Rwandan jurisdictions, [the applicant] will be accorded adequate accommodation, at a prison which has been deemed by international observers to meet international standards. Transferred persons will be afforded nourishment and medical treatment, and will be treated in a humane and proper manner, in accordance with international accepted standards.”
In a footnote, the detention facility was described in greater detail:
“MPANGA Prison in the Southern Province has been designated as the primary detention centre. The ICTR [the International Criminal Tribunal for Rwanda] has acknowledged, after visiting the Prison, that it meets international standards. A transfer facility has also been established at Kigali central prison, and this facility will serve as a temporary detention centre for suspects appearing before the High Court of the Republic. ...”
15.  In accordance with Section 15 of the 1957 Act, the Government referred the request to the Office of the Prosecutor-General. Since the applicant opposed the extradition, he was granted public defence counsel. Moreover, on 29 September 2008, the District Court decided to remand the applicant in custody on suspicion of genocide.
16.  On 9 March 2009 the Prosecutor-General finished his investigation and referred the case to the Supreme Court (Högsta domstolen) for examination in accordance with Section 17 of the 1957 Act. He attached his opinion, according to which there was probable cause for believing that the applicant was guilty of the crimes referred to in the extradition request and, as – with the exception of the last charge (6 above) – they corresponded to crimes under Swedish law, the extradition request could be granted. The Prosecutor-General further submitted that, although the investigation could give cause for some doubt, there were no impediments to the extradition as the situation in Rwanda was not so serious that the applicant’s rights under Articles 3 and 6 of the Convention would be violated.
17.  Before the Supreme Court the applicant opposed the extradition and denied all of the charges against him. He alleged that the witness accounts which formed the basis of the charges were false and that there was a conspiracy against him. As concerned the alleged massacre on 7 April 1994, it had been investigated by the Danish police but the investigation had been discontinued as there was insufficient evidence against him. This lack of evidence applied to all the crimes of which he was accused. Moreover, in his view, the accusations were of a political nature as he was a Hutu and he was convinced that he would be seriously persecuted if returned. The applicant further claimed that the Rwandan justice system was corrupt and dysfunctional and lacking in independence and impartiality. In particular, it would be very difficult for him to call and question witnesses in his defence on an equal basis with witnesses called by the prosecution. Thus, he would suffer a flagrant denial of justice in violation of Article 6 of the Convention. He also referred to several decisions in which the ICTR had found that there were impediments to transferring genocide suspects to Rwanda and noted that no other country had accepted such requests from Rwanda. Lastly, he invoked his poor health, stating that he had undergone a heart bypass operation and would be in need of another such operation within a few years.
18.  On 26 May 2009, after having held an oral hearing, the Supreme Court took its decision. It first stressed that the examination was limited to the question of whether there were any impediments to the applicant’s extradition. In carrying out this examination, the Supreme Court had to consider the 1957 Act as well as Articles 3 and 6 of the Convention. Turning to the circumstances of the case, the court first agreed with the Prosecutor-General’s assessment that there was probable cause to believe that the applicant was guilty of the charges against him and that, since these crimes were also crimes under Swedish law, it was permissible to extradite him (exception was again made for the sixth charge for the same reason as above). The court further found that the crimes were not of a political nature and that, hence, this did not constitute an impediment. Furthermore, in regard to the applicant’s Hutu ethnicity, which had been of great importance when the Danish authorities granted him asylum, the court noted that the definition of refugee status had been expanded in many countries. The court then noted that neither the Danish decision nor the investigation on which it was based had been adduced in the extradition matter. The court however found that the Danish decision was several years old and that the evidence at the court’s disposal did not support the assessment that the applicant was at a real risk of persecution due to his ethnicity. The court also considered that the applicant’s state of health did not pose any problem for the extradition. Thus, there were no impediments under the 1957 Act to the extradition of the applicant.
19.  Turning to the examination under the Convention, the Supreme Court first found that the evidence at hand did not give reason to believe that the applicant would be subjected to torture or inhuman or degrading treatment contrary to Article 3 of the Convention upon return to Rwanda. As concerned Article 6, the court noted that, according to Strasbourg case-law, only a “flagrant denial of justice” in the receiving country could lead to a finding of a violation against the extraditing country. Hence there was no requirement to ensure that the person would be guaranteed a fair trial in all aspects. Moreover, it was for the applicant to show that there were substantial grounds for believing that he would suffer a flagrant denial of justice. In the instant case, the applicant had given information about Rwanda and had submitted a letter of 16 October 2008 from Amnesty International (see further below at §§ 41-43) and decisions by the ICTR of 28 May and 6 June 2008. He had also presented a decision by the Ministry of Justice of Finland of 20 February 2009 and a decision by the High Court in London of 8 April 2009, both of which declined to extradite some persons to Rwanda to stand trial. In this respect, the court noted that the Finnish decision was based on ICTR’s decisions. However, these decisions concerned transfer of suspects from the ICTR to the Rwandan national courts. According to Article 11 bis of the ICTR’s Rules of Procedure and Evidence, extradition was possible if the tribunal was satisfied that the accused would receive a fair trial in the courts of the State concerned. This, in the Swedish Supreme Court’s opinion, was clearly a much more rigorous demand than that under Article 6 of the Convention. ICTR’s decisions could therefore not lead to the conclusion that the extradition of the applicant in the present case would be in violation of Article 6 of the Convention. In regard to the decision of the UK High Court, the Supreme Court noted that, contrary to the lower court, the High Court had found that the extradition of the persons in question would put them at real risk of suffering a flagrant denial of justice, with respect to both the difficulty of adducing evidence and the doubts pertaining to the independence and impartiality of the Rwandan judiciary. While this gave reason to doubt whether the extradition of the applicant would be possible, the Supreme Court observed nevertheless that, according to international sources and reports from the Swedish Ministry for Foreign Affairs and the Swedish Embassy in Kigali, the judicial system in Rwanda had made clear improvements after the above-mentioned decisions, although much remained to be done. For instance, a new witness protection programme had been launched and the punishment of life-time imprisonment in isolation had been abolished.
20.  Having regard to all of the above, the Supreme Court found that there existed certain reasons to doubt that the applicant would be afforded a trial in Rwanda which fulfilled all requirements under Article 6 of the Convention, in particular whether his right to call witnesses would be equal to that of the prosecution. However, the circumstances of the case did not constitute a general legal impediment to the extradition of the applicant to Rwanda to stand trial on charges of genocide and crimes against humanity. The court then expressed that it assumed that consideration would be given to the need for further information before the Government made a final decision in the case.
21.  On 7 July 2009 the Swedish Government decided that the applicant should be extradited to Rwanda to stand trial for genocide and crimes against humanity. However, it rejected the request in relation to the sixth charge. The Government first agreed with the Supreme Court that there were no impediments to the extradition under Swedish law. As concerned the examination under the Convention, the Government noted that the death penalty had been abolished in 2007 and that life imprisonment with special conditions (such as isolation) had been abolished in November 2008. A new prison had been built which was considered to reach an acceptable international standard and which, inter alia, was meant for persons convicted of genocide. There was also nothing to suggest that the Rwandan State sanctioned torture or inhuman treatment of convicted persons or persons suspected of serious crimes. Thus, extradition would not be contrary to Article 3 of the Convention. In regard to Article 6, the Government observed that the standards set by the ICTR were more rigorous than the standard set by the Convention and the European Court’s case-law. It noted that the judicial system in Rwanda had improved over the last couple of years and that new laws had been promulgated during the spring of 2009 to improve the witness protection programme and the possibility to hear witnesses who were not present in Rwanda. Hence, the Government concluded that the extradition would not violate Article 6 of the Convention and therefore approved it.
22.  On 13 July 2009 the applicant requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of his extradition to Rwanda. On 15 July the President of the Section to which the case had been allocated decided to apply Rule 39 and, on 20 July, the Swedish Government decided not to enforce the extradition until further notice.
23.  Subsequently, on 21 July 2009, the President of the Section requested the Government to reply to certain factual questions in accordance with Rule 54 § 2 (a) of the Rules of Court. Specifically, the President wanted to know if the Government had obtained any guarantees from the Rwandan authorities that the applicant would receive a fair trial and be treated in a correct manner, if they knew where he would be detained and whether they intended to adopt measures to monitor and follow the future detention and trial of the applicant in Rwanda.
24.  In a letter of 12 August 2009, sent following a request for information from the Swedish Ministry of Justice, Mr Tharcisse Karugarama, the Rwandan Minister of Justice confirmed the following:
“1.  If transferred to Rwanda, [the applicant] will primarily be placed in the Mpanga [Prison] during his pre-trial and detention during trial. The Kigali Central Prison, however, may serve as a temporary detention center for him while appearing before the High Court of the Republic. 3.  Swedish authorities will be able to monitor and evaluate [the applicant’s] conditions in Rwanda, in relation to his detention/imprisonment facilities, as well as in relation to his trial and proceedings conducted in Rwanda.”
Mr Karugarama also assured that the applicant would not be subjected to solitary confinement once returned to Rwanda. The Death Penalty Abolition Law (see further below at § 35) excluded life imprisonment with special provisions (i.e. isolation) for those extradited from other states.
25.  By a decision of 27 July 2011, the Supreme Court released the applicant from detention.